About

From its office in Clayton, Missouri, Danna McKitrick, P.C., delivers legal representation to new and growing businesses, financial institutions, non-profit and government-related entities, business owners, individuals, and families throughout the greater St. Louis region and the Midwest.

Danna McKitrick attorneys practice across many areas of law, both industry- and service-oriented.

One of the many employment-related decisions a company must make is whether it wishes to require employees to give up their rights to file an employment action in court, and instead to require employees to use arbitration.

In Part One, we discussed how employers can require employees to arbitrate claims on an individual basis. This much-anticipated U.S. Supreme Court decision in Epic Systems Corporation v. Lewis allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

The decision in Epic also added an additional favorable factor to the arbitration choice column. The Court ruled that employers can require employees to arbitrate claims on an individual basis and thus avoid class actions. Epic Systems (which was decided along with two sister cases) involved employees seeking class action litigation, despite having employment contracts with provisions that required individualized arbitration proceedings.

Although Missouri is an employment at will state, employees can sue employers under various state and federal statutes in state or federal court. Some of those statues, for example, the Fair Labor Standards Act, allow class actions. Litigation is very costly and there could always be a runaway jury. Arbitration, on the other hand, is designed to avoid complex and time-consuming litigation and to provide an alternate source of justice. An arbitration could take six months to resolve but the decision will be final and binding and unappealable, while a court proceeding through a jury trial could take 21-41 months and the decision is always appealable. Continue reading »

The U.S. Supreme Court upheld the legality of class action waivers in employee arbitration agreements by issuing a 5-4 decision in Epic Systems Corporation v. Lewis on March 21, 2018.

In short, employers can require employees to arbitrate claims on an individual basis. This much-anticipated decision allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

Brief History of Arbitration Clauses and Class Action Waivers in the Employment Context

The Federal Arbitration Act (“FAA”) was enacted in 1925 in response to hostility toward arbitration agreements. The FAA provides that a written agreement to submit a controversy arising out of the agreement to arbitration is to be enforced unless “grounds exist at law or in equity for the revocation of any contract.” Since the enactment of the FAA, the Supreme Court has consistently recognized the establishment of a federal policy supporting arbitration agreements.

However, in 2012, the National Labor Relations (“NLRB”) found in D.R. Horton, Inc., that mandatory arbitration agreements with class action waivers were violative of employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to self-organize, bargain collectively, and “engage in activities for the purpose of collective bargaining or other mutual aid or protection.” Following the NLRB’s decision, a split among the circuits developed. While the Second, Fifth and Eighth Circuits rejected the NLRB’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the NLRB and refused to enforce employee arbitration agreements with class action waivers.

Epic Systems Corporation v. Lewis

On May 21, 2018, the Supreme Court resolved the circuit split and upheld the use of class action waivers in arbitration agreements in Epic Systems Corp. v. Lewis. Epic Systems, which was decided along with two sister cases, involved employees seeking class action litigation despite having employment contracts with provisions that required individualized arbitration proceedings. The following are the three key arguments by employees and the Court’s decisions: Continue reading »

Not surprisingly, there is both anecdotal and empirical evidence that time constraints affect behavior generally. It is also, therefore, not surprising that high time pressure (hereinafter “HTP”) probably affects both parties and mediators in mediation.

I recently ran across this question, and found particularly interesting (though not recent) articles by social science researchers which could assist both parties and mediators in their participation in mediation sessions.

In “Time Pressure in Negotiation and Mediation,” a 1993 article, Professors Peter Carnevale, Kathleen O’Connor and Christopher McCusker, then professors in the Department of Psychology, University of Illinois (“Carnevale, et al.”), reviewed the scientific research to that date on HTP in negotiation generally, and mediation in particular, to identify common themes, interesting questions, possible outcomes of differing HTPs and resulting behaviors. It is only possible here to review possible conclusions of (not the methods of) the research and suggest actions to be taken accordingly by mediation participants to benefit their outcomes. [This article was one of 18 chapters in a larger volume entitled “Time Pressure and Stress in Human Judgment and Decision Making” (Plenum Press 1993). The article, as did the other chapters, discussed the effect of HTP in negotiation generally; it then discussed the effects of such pressure on mediation in particular.]

The authors initially noted that the three strategies primarily used in mediation are: Continue reading »

In my Med-Arb Memo of August 2010, I pointed out that a formal mediation session actually should be considered as just one part of a possible multi-part process.

I just read an interesting article suggesting that disputing parties each hire a (separate) consultant to perform decision-tree (DT) analyses when entering into negotiation or mediation.[1] The article argues, and cites instances in which, the hiring of neutral consultants by both parties to the dispute to perform DT analyses led to a greater number of resolutions of those disputes.[2] For many disputes, particularly high-dollar disputes, this is an excellent idea.

But use of DT and other risk analyses and probability assessments in mediation should not be restricted to use of expensive analytic consultants. The parties and the mediator should consider using them without consultants, with much less expense.

DT analysis in litigation is not rocket science. It simply calls on each party (or counsel) to (honestly) analyze and decide the following: the ultimate issues (those whose outcomes individually or in combination would be dispositive of the case with respect to liability, plus those comprising the major components of damages) on issues which each party must prevail in the case in its entirety; and finally, to assess (again, honestly) the percentage likelihood of prevailing on each such issue. At each step in the analyses, of course, the likelihood of success on each issue being less than 100%, the likelihood of total success is discounted. Continue reading »

One of the officers of a corporate client calls. You note the distress in his voice immediately. He tells you that a dispute has arisen between the major shareholder factions of the company, and he wants you to advise on what he and those in his faction can do to win this. And you can tell he expects you to talk “reason” to the other faction.

But you quickly realize that although for the moment knowledge of the dispute is restricted to people in the company, it will only be a short time before it gets out to the customers, suppliers, banks and others with whom the company does business, threatening the existence of the company.

You should consider recommending the factions mediate the dispute, if possible before litigation is filed.

Advantages of Mediation

Some advantages of mediation are:

No Publicity. No lawsuit is filed. The situation can be kept as confidential as the parties want.

Speed. Trial, or even a hearing for significant injunctive relief, will take months, if not years. And as soon as customers hear there is an internal dispute — and they will — they will take their business elsewhere, to a “stable” competitor. And this risk increases significantly if a lawsuit is filed. A mediation can begin immediately.

It is generally agreed among lawyers that some amount of information must be possessed by both disputing parties to a mediation, if the mediation is to result in settlement. (Of course, theories on how much information is necessary, i.e. how much discovery, if any, differ with types of case and frequently from attorney to attorney.) I’ll write more about that in future memos.